Unofficial Opinion 99-6

October 15, 1999

To:

Representative District 158

Re:

A probate judge may not employ an attorney to prosecute criminal cases in the probate court.

You have requested my opinion as to whether a judge of a probate court may employ an attorney to prosecute criminal cases subject to the jurisdiction of the probate court if the county government is unwilling to employ a prosecuting attorney. For the reasons stated below, it is my opinion that a probate judge may not employ a prosecutor.

The Georgia Court of Appeals has held that “[w]here the constitution creates an office and prescribes the duties of the holder thereof, and declares that other duties may be imposed upon him by statute, he has no authority to perform any act not legitimately within the scope of such statutory and constitutional provisions.” Bryant v. State, 164 Ga. App. 555, 556 (1982) (citations and internal quotation marks omitted). The office of judge of the probate court is an office created by the Georgia Constitution. Ga. Const., Art. IX, Sec. I, Para. III. The office has “such qualifications, powers, and duties as provided by general law.” Id. I have reviewed O.C.G.A. § 15-9-30, which is a general law respecting the powers and duties of the probate court, as well as the other statutes regarding the probate court, and am unable to locate any statutory authority authorizing a probate judge to employ a prosecuting attorney.

Although O.C.G.A. § 40-13-21(c) provides that in a misdemeanor traffic case a judge of the probate court may “request the assistance of the district attorney of the circuit in which the court is located or solicitor-general of the state court of the county to conduct the trial on behalf of the state,” the responsibility of the district attorney or solicitor-general in this area is discretionary. See 1991 Op. Att’y Gen. U91-6. Official Code of Georgia Annotated § 15-18-66(b)(3) provides that the duties of a solicitor-general include acting as the prosecuting attorney of a probate court, but only when authorized by the local governing authority.

Additionally, the employment relationship resulting from the selection and employment by a probate judge of an attorney to prosecute cases in the probate court, where the probate judge serves as the trier of fact, could give rise to an appearance of impropriety and a perception of a lack of impartiality in favor of such a prosecuting employee. A government servant must always be cognizant of his or her duties and responsibilities and avoid involvement in particular factual circumstances which could give rise to either an appearance of impropriety or an actual conflict of interest. See 1997 Op. Att’y Gen. U97-11. Also, Canon 2 of the Code of Judicial Conduct provides that judges “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Thus, a probate judge may request, on a case by case basis, the district attorney or solicitor-general to conduct a criminal trial of certain types of cases in the probate court. In the alternative, a local government may authorize the solicitor-general to serve as the prosecuting attorney of the probate court or may otherwise provide for the probate court to have a prosecuting attorney. It is my opinion, however, that a probate judge may not employ an attorney to prosecute cases in the probate court.